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The online home of legal scholarship from the Michigan Journal of Race & Law‘s editors.

By Alanna Farber
Associate Editor, Vol. 20
Executive Editor, Vol. 21

Editor’s Note: This Comment was originally published on April 8, 2015.

The school district in Cleveland, Mississippi has been subject to federal jurisdiction since 1965 due to continued struggles in desegregating its schools.[1] Fifty years ago, citizens of Cleveland sued the county’s board of education, alleging that the defendants had not made any efforts to desegregate public schools.[2] The plaintiffs thereby sought an injunction “enjoining the Defendants from continuing to operate compulsory biracial public school systems . . . .”[3] Ever since, the desegregation of Cleveland’s schools has been in dispute. This Comment contends that the remedies that the District Court prescribed in 2013,[4] and that the Fifth Circuit did not reject in 2014,[5] remain insufficient and will not lead to meaningful desegregation in Cleveland’s middle and high schools.

In the 1960s, the predominantly Caucasian neighborhoods of Cleveland were located on the west side of the Illinois Central Railroad tracks. All six public schools – one high school, one junior high school, and four elementary schools – on the west side of the tracks had been de jure (legally) segregated throughout the decade, and remained de facto (in practice) segregated thereafter, each enrolling overwhelmingly, if not exclusively, Caucasian students.[6] On the other hand, African-American neighborhoods were located on the east side of the tracks, where four overwhelmingly African-American schools were situated – one high school (East Side High School), one junior high school (Eastwood Junior High School), and two elementary schools.[7]

What followed over the next fifty years were a series of court orders laying out desegregation plans for the district to implement. The plans were sometimes clear enough to put into motion but usually vague enough to stall significant progress. Desegregation orders were issued in 1969, 1989, 1992, and 1995. Each addressed varying solutions to segregation.[8] Early on, the orders largely made subtle shifts to neighborhood zoning rules. However, zoning changes were almost exclusively directed at the elementary schools and thereby proved effective at desegregating many of Cleveland’s elementary schools.[9] Notably, at the joint request of the district and the government, the two 1990s court orders approved the establishment of magnet programs at all school levels. At this juncture, both parties believed that the implementation of specialized magnet programs would successfully desegregate Cleveland’s schools.[10]

Tensions once again flared up in 2006, when the federal government “initiated a . . . review of the District to assess whether the District was in compliance with the Court’s extant desegregation [o]rders.”[11] The government alleged multiple violations of the desegregation orders, including the fact that the majority of Cleveland’s schools were still identifiable as having either a majority of African-Americans or Caucasians.[12] The Court held that it was impermissible that the schools could be identified as either Caucasian or African-American: “[W]here it is possible to identify a ‘white school’ or a ‘Negro school’ simply by reference to the racial composition of teachers and staff . . . a prima facie case of violation of substantive constitutional rights under the Equal Protection Clause is shown.”[13] Consequently, in 2011, the government filed suit claiming the school district had not effectively dismantled segregation in Smith and East Side, and requested that the district court enforce its desegregation orders.[14]

In response, the school district argued that it had fulfilled the good faith requirement for complying with desegregation efforts, which is the standard that school districts enacting school desegregation plans must meet.[15] The Supreme Court in Brown v. Board of Education[16] directed the federal courts to apply “a good faith compliance standard, recognizing that ‘although [s]chool authorities have the primary responsibility for elucidating, assessing, and solving these problems[,] courts will have to consider whether the action of school authorities constitutes good faith implementation of the governing constitutional principles.’”[17] The Supreme Court further emphasized this standard in Green v. County School Board, stating that “[w]here the court finds the board to be acting in good faith and the proposed plan to have real prospects for dismantling the state-imposed dual system ‘at the earliest practicable date,’ then the plan may be said to provide effective relief.”[18]

The district court in Cowan found that while the district was making significant progress toward desegregation in most of the schools, it was “troubling” to see the numbers at D.M. Smith Junior High School (“Smith”) and East Side High School (“East Side”), which both remained 99.7% African-American.[19] Thus, the court ordered that the school district submit a new desegregation plan for Smith and East Side.[20] The school district accordingly devised a plan that sought to establish magnet programs at both schools,[21] while the government submitted a proposal to consolidate the junior high and high schools.[22] In May 2012, both proposals were submitted to the district court for review and selection.[23]

However, in January 2013, the district court found with little explanation that the both of the proposed plans would not suffice, and instead implemented a true open-enrollment “freedom of choice” plan in which every student in Cleveland could pre-enroll at any school.[24] This plan quickly went awry as no Caucasian students pre-enrolled at Smith or East Side for the 2013-2014 school year.[25] The government appealed the district court’s decision and in 2014, the Fifth Circuit remanded the case, stating that the district court needed to provide a more explicit explanation as to why it ordered the freedom of choice system.[26] The Fifth Circuit held that it would not be able to review the district court’s order with “sufficient particularity to allow [the Fifth Circuit] to determine rather than speculate that the law has been correctly applied.”[27]

The Fifth Circuit went on to state that “if the district court’s remedy is premised on a conclusion that, aside from the freedom of choice plan, there is nothing more that the District can do or should do to desegregate D.M. Smith and East Side High, that conclusion should be justified.”[28] The Fifth Circuit also clarified that while the empirical evidence indicated that a freedom of choice plan would likely not do anything to meaningfully desegregate Smith or East Side, it was not necessarily a constitutionally inadequate solution (depending, of course, on whether other remedies were available and if they could be projected to be more effective than the freedom of choice plan).[29]

A half-century has passed since Cowan, and somehow, despite all of the court filings, orders, and opinions, there remain two significantly and deplorably segregated schools in Cleveland, Mississippi. The incredible lag time in this case could be reflective of a slew of historical, political, social, and cultural issues, but one thing is certain – the amount of time Cleveland students have been victims of segregation is unacceptable.[30]

The Supreme Court in Green clearly suggested that freedom of choice plans are generally disfavored and should be implemented only as a last-ditch desegregation tactic, hence the need to first analyze any and all “reasonably available other ways . . . promising speedier and more effective conversion to a unitary, nonracial school system.”[31] In Cowan, the Fifth Circuit endorses this view, but does not explicitly compel the district court to fully reconsider other alternatives, including the school district’s magnet program plan as well as the government’s consolidation plan.[32] As previously stated, magnet programs were an effective desegregation tool in Cleveland in the 1990s.[33] Furthermore, since the school district never attempted to consolidate its schools, consolidation could prove to be a viable alternative.[34]

Although the Fifth Circuit determined that it needed the district court to provide a more thorough explanation of its rationale for ordering a freedom of choice plan, it failed to offer any further instructions as to the degree of particularity with which the district court should make its finding. The Fifth Circuit also did not set any deadline by which the district court should complete this task.[35]

Beyond that, the Fifth Circuit implies that its relatively light burden may be met by a mere statement from the district court that no other feasible alternative exists. In fact, the Circuit Court spoon-feeds the district court the necessary language to maintain its earlier unfounded conclusion[36] – all the district court needs to state on remand is that there is nothing more the school district can do to ensure desegregation in these schools. When considering the district court’s previous opinion, it clear that sufficient treatment was not given to the other proposed alternatives, i.e., magnet programs or consolidation. Given the Fifth Circuit’s vague directive, it is very possible, if not likely, that the lower court will again be excused from thoroughly examining feasible alternatives to a freedom of choice system.

Therefore, as it stands, the courts seem poised to permit a plan that has had no impact whatsoever on the desegregation of Smith or East Side (remember, not one Caucasian student pre-enrolled at either school when the freedom of choice plan was established). At this rate, successful desegregation of schools in Cleveland is positioned to take years, if not decades. Thousands of students in Cleveland over the past fifty years have received what amounts to an unconstitutionally segregated education.[37]

The people of Cleveland should refuse to accept that nothing more can be done to desegregate Smith and East Side. Instead of relying on the Fifth Circuit’s sample “conclusion,”[38] the district court should first reconsider the plans that the school district and government proposed in 2012.[39] The establishment of magnet programs was a proven success in the 1990s in desegregating many of Cleveland’s schools.[40] Why, then, was the school district’s 2012 proposal so swiftly disregarded?

The court should also consider repealing the freedom of choice plan and returning to zoning. The fear in doing so is that Caucasian families will then start sending their children to private schools, as many well-situated Caucasian families do in surrounding towns.[41] However, if the quality of education is truly the same at all Cleveland schools, then Caucasian parents should rest assured that their children are receiving a high-quality education regardless of which building houses that education. If the quality of education is, in fact, inferior at one of the schools, then the school district should take strides to improve the educational outcomes at that school. The school district has also fought adamantly against the government’s proposed one-school solution, claiming that the two-school model is integral to the identity of Cleveland.[42] But at some point, it must be determined that the residents’ interest in preserving the identity of the city simply cannot outweigh society’s interest in eradicating pervasive school segregation. On this point, the priorities of the school district should be called into question.

Desegregation of schools is a central issue in American law and has been for over sixty years. How many more classes must graduate from Cleveland’s segregated schools before the Supreme Court’s vision in Brown is finally realized? We cannot permit one district court to throw in the towel and sit idly by as unconstitutional segregation remains in effect on the east side of the railroad tracks in Cleveland. This would signal defeat in a fifty-plus year battle against segregation, and could have a floodgates-effect on yet-to-be segregated school districts. No child, regardless of race, should be raised in a country that implicitly consents to school segregation.

[1] Cowan ex rel. Johnson v. Bolivar Cnty. Bd. of Educ., 914 F. Supp. 2d 801, 804 (N.D. Miss. 2012).

[2] Id.

[3] Id. at 805.

[4] See Cowan ex rel. Johnson v. Bolivar County Bd. of Educ., 923 F. Supp. 2d 876, 881 (N.D. Miss. 2013).

[5] See Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 236 (5th Cir. 2014).

[6] Cowan, 914 F. Supp. 2d at 804-05.

[7] Id. at 805. Originally, the high school and the junior high school on the east side of the tracks had been merged. Eastwood Junior High School was established as a result of the 1969 court order. Id. at 808.

[8] See generally id. at 805-10.

[9] See id. at 806-08, 816.

[10] See id. at 809-10.

[11] Id. at 814.

[12] Id.

[13] Cowan, 914 F. Supp. 2d at 814 (quoting Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18 (1971)).

[14] Cowan, 914 F. Supp. 2d at 814.

[15] Id. at 812, 814-15.

[16] 349 U.S. 294 (1955).

[17] Cowan, 914 F. Supp. 2d at 812 (quoting Brown, 349 U.S. 294 at 299).

[18] 391 U.S. 430, 439 (1968).

[19] Id. at 817-18.

[20] Id. at 826.

[21] Cowan ex rel. Johnson v. Bolivar County Bd. of Educ., 923 F. Supp. 2d 876, 881 (N.D. Miss. 2013).

[22] Cowan v. Cleveland Sch. Dist., 748 F.3d 233, 236 (5th Cir. 2014).

[23] Id.

[24] Id. at 882. The district court also abolished previously established attendance zones. Id.

[25] Cowan, 748 F.3d at 237.

[26] Id. at 240.

[27] Id. (quoting Davis v. E. Baton Rouge Parish Sch. Bd., 570 F.2d 1260, 1263-64 (5th Cir. 1978)).

[28] Id.

[29] Id. at 239-40.

[30] See, e.g., Green, 391 U.S. at 438 (noting that a ten-year delay for the defendant school district to first begin its desegregation plans was “intolerable”).

[31] Id. at 441. The Court repeatedly provides the example of zoning as a potentially effective desegregation tool. Id.

[32] See Cowan, 748 F.3d at 239-40.

[33] See Cowan, 923 F. Supp. 2d at 879-81; Cowan, 914 F. Supp. 2d at 820.

[34] See Cowan, 748 F.3d at 236.

[35] Id. at 240.

[36] See id.

[37] See Brown v. Bd. of Educ., 347 U.S. 483, 495 (1954) (overruling Plessy v. Ferguson, 163 U.S. 537 (1896)) (“[I]n the field of public education the doctrine of ‘separate but equal’ has no place . . . Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.”).

[38] See Cowan, 748 F.3d at 240.

[39] See Cowan, 923 F. Supp. 2d at 881.

[40] See id. at 879-81; Cowan, 914 F. Supp. 2d at 820.

[41] See Cowan, 923 F. Supp. 2d at 878.

[42] Cowan, 748 F.3d at 237.


COMMENT: Resolving the 7th Circuit’s Split on Bringing Class-Of-One Equal Protection Claims

By Jacob Hogg
Associate Editor, Vol. 20

Editor’s Note: This Comment was originally published on Feb. 23 2015.

The Equal Protection Clause of the Fourteenth Amendment is one of the most celebrated and discussed topics in Constitutional Law. This clause states “No State shall [. . .] deny to any person within its jurisdiction the equal protection of the laws.”[1] Law students generally learn about this clause in relation to certain classes or groups of individuals in society who have encountered discrimination in some way based on an affiliation with a “group,” such as race or gender. Because the Equal Protection Clause “protect[s] persons, not groups,[2] there are situations where individuals can bring claims alleging a violation of the Equal Protection Clause in which they were discriminated against without reference to a particular “group” to which they belong. A “class-of-one” equal protection claim may be alleged where the plaintiff can establish that he “has been intentionally treated differently from others similarly situated and there is no rational basis for the difference in treatment.”[3] The Fourteenth Amendment allows for this when individuals are affected by “purely arbitrary government classifications, even when a classification consists of singling out just one person for different treatment for arbitrary and irrational purposes.”[4] It should be noted that although the term “class-of-one” implies that only one individual can make this claim, it “refers not to the number of plaintiffs but to the fact that the plaintiff or plaintiffs is not suing as a member of an identifiable group, such as a race or a gender, or for that matter an industry.”[5]

Because class-of-one claims “might well be thought . . . to require a different level of consideration from other forms of discrimination challenged under the equal protection clause,”[6] the Seventh Circuit has recently split over what exactly must be proven in a class-of-one claim under the rational basis test. Although the Supreme Court has dealt with class-of-one cases on a few occasions, it has yet to establish whether these claims require improper motive in order to prevail. In Del Marcelle v. Brown Cnty. Corp.[7] the Seventh Circuit in an en banc proceeding split three ways. The Seventh Circuit summarized the Del Marcelle decision in D.B. ex. rel. Curtis B. Kopp,[8] stating that “[s]ome members of the court thought the plaintiff should be required to plead and prove that the disparate treatment was motivated by personal ill will or other illegitimate purpose; that is, a purpose unrelated to public duty.”[9] Others expressed the view that personal animus or other improper motive is not an element of the claim but just one way to prove that the defendant’s action lacked a rational basis.[10] One member of the court concluded that motive or intent “has no role at all” in class-of-one litigation.[11] This comment will describe the differences between the justices in their split over this issue. I will also propose a solution to this problem in which I adopt Judge Wood’s approach by examining other cases as well as the judges’ rationales for class-of-one claims to fit the overall purpose of the equal protection clause.

The Seventh Circuit Split

In Del Marcelle, the plaintiff filed a complaint against public employees of his city and county government under a class-of-one equal protection claim after a motorcycle gang continuously harassed him and his wife. Although he filed several complaints with the Sheriff’s Department, “[n]ot only were his pleas ignored, but based on competing complaints from others, the Department issued citations to [the plaintiff] himself for actions he had taken in response to his mistreatment.”[12] The motorcycle gang further harassed the plaintiff even after he moved to another city. When he and a motorcycle gang member, Taggart, each filed a complaint against the other, the plaintiff “received a citation based on Taggart’s complaints, but the police would not accept [the plaintiff’s] complaint; they told him that they would not help him because he was crazy.”[13] The Seventh Circuit heard this case en banc, and the Court split over what role, if any, improper motive should play in class-of-one cases.

Judge Posner, joined by four other judges, believed that

[T]he plaintiff [should] be required to show that he was the victim of discrimination intentionally visited on him by state actors who knew or should have known that they had no justification, based on their public duties, for singling him out for unfavorable treatmentwho acted in other words for personal reasons, with discriminatory intent and effect.[14]

Judge Posner elaborated on this point by stating that public officials hold a special role in our system and thus class-of-one claims should not be brought against these individuals simply for exercising their discretion in deciding which complaints to pursue over others.[15] Furthermore, deciding which cases to pursue may be a matter of administrative burden or allocation of resources rather than intent to improperly harm a certain individual.[16] Judge Posner therefore argued that “class-of-one suits should not be permitted against police officers or police departments, complaining about failure to investigate a complaint or otherwise provide police protection to a particular individual, unless the police, acting from personal motives, with no justification based on their public duties, intend to disfavor the plaintiff.”[17] Allowing class-of-one cases without a claim of improper motive would go against the actual purpose of the equal protection clause because they “are neither necessary to prevent serious injustices nor manageable; they are not compelled by the equal protection clause or the case law interpreting it; they fill no yawning gap in the legal protection of Americans.”[18] Furthermore, Judge Posner rejected the view that improper motive should not be an element in class-of-one claims but used to show that the defendant fails under a rational basis test. He argued that “so loose a standard could invite a flood of cases, because the opinion imposes a high burden of proof on plaintiffs (though not on this plaintiff) and requires that the complaint itself ‘show . . . some plausible reason to think that intentional, irrational discrimination has occurred.’”[19]

Judge Wood disagreed with Judge Posner that class-of-one claims require improper motive or animus by the defendant, but believed that they could be used as evidence that the defendant’s discrimination could not meet the rational basis test. Judge Wood argued that the complaint must allege two elements in order to prevail past the pleading stage for class-of-one claims. The first is that it “must set forth a plausible account of intentional discrimination, which is required for any violation of the Equal Protection Clause.”[20] Second, “[t]he complaint must also indicate how the plaintiff proposes to shoulder the burden of demonstrating the lack of a rational basis.”[21] She contended that this could be done in a number of ways, including through a showing of improper motive or personal animus by the public official. However, this factor is not a “primary rule[]”[22] to successfully make a class-of-one claim. The plaintiff must be able to

do more than show that state actors who have legitimately been delegated discretion to act simply exercised that discretion. It is entirely rational, in other words, to permit state actors to make individualized decisions when the very nature of their job is to take a wide variety of considerations into account.[23]

Therefore, if a plaintiff can show that the defendant had a certain ill will against the plaintiff in making a discriminatory decision, the plaintiff would be successful in proving that the defendant was not just exercising discretion in making a decision about which complaints to pursue. This view, Judge Wood wrote, “‘addresses the main concern with the class-of-one theory—that it will create a flood of claims in that area of government action where discretion is high and variation is common,’”[24] because a plaintiff must allege in detail and with particularity in his complaint to show that the claim of discrimination was not due simply to discretion by a public official, especially a police officer. Finally, Judge Wood stated that the Posner view would be difficult for courts to follow because “[i]t is all too easy for a plaintiff to accuse someone of a malicious motive and thus to impose on the entire system the burden of going forward.”[25]

Chief Judge Easterbrook disagreed with both Judge Posner and Judge Wood in stating that improper motive should not be a factor in class-of-one claims. He contended that the proper way of determining whether a discriminatory action has violated the equal protection clause through the rational basis test is “whether a rational basis can be conceived, not whether one is established on the record or occurred to a defendant.”[26] The defendant need not prove his or her reason to the Court for discriminating against this particular person under a rational basis test. The Chief Judge argued that in this particular case there were two rational bases for the way the police officers treated the plaintiff: “First, they had limited enforcement resources and could not fully investigate all complaints. Second, defendants may have concluded that [the plaintiff] was imagining or exaggerating the problems he reported. Under the rational-basis test, either possibility requires judgment in defendants’ favor.”[27] The defendant’s reasoning or personal view of the plaintiff therefore does not matter under the rational basis test. Thus, the intent of the defendant is not important. As Judge Easterbrook stated, “[i]f [the plaintiff] were arguing that defendants held his race, sex, or religion against him, and were seeking heightened scrutiny, intent would matter. He does not contend, however, that defendants engaged in class-based discrimination; that’s why this is a class-of-one case.”[28]

Resolving The Split

In order to come to a conclusion about which view should prevail, the purpose of the equal protection clause must first be understood. The Supreme Court has articulated that this purpose “‘is to secure every person within the State’s jurisdiction against intentional and arbitrary discrimination, whether occasioned by express terms of a statute or by its improper execution through duly constituted agents.’”[29] In Village of Willowbrook v. Olech, the Court decided a class-of-one case but left out the question of whether improper motive is necessary to establish the claim. However, the Court, in coming to a conclusion, stated that the allegations raised in the complaint in which the plaintiff claimed that public officials discriminated against him were sufficient to show an equal protection violation. Even though the plaintiff alleged ill will by the defendant, the Court stated that the “allegations, quite apart from the Village’s subjective motivation, are sufficient to state a claim for relief under traditional equal protection analysis.”[30] Under the Supreme Court’s analysis, Judge Posner would be incorrect, because the Court decided a case without looking at whether there was improper motive by the defendant. Thus, personal animus is not a necessary element in class-of-one claims. Judge Wood, in her dissent in Del Marcelle, also had reservations about adopting Judge Posner’s view because it “might be read as endorsing a new type of rational-basis test that the Supreme Court has never created—some kind of ‘rational-basis minus’ level of review,”[31] given that “he is concerned that too many class-of-one cases will slip by the normal rational-basis screen.”[32]

Justice Breyer, who concurred in Olech, formulated a similar argument to that made by Judge Wood in Del Marcelle. Olech dealt with potential discrimination in a zoning decision. Justice Breyer noted that,

Zoning decisions, for example, will often, perhaps almost always, treat one landowner differently from another, and one might claim that, when a city’s zoning authority takes an action that fails to conform to a city zoning regulation, it lacks a “rational basis” for its action (at least if the regulation in question is reasonably clear).[33]

Justice Breyer argued that this zoning case was different than other non-discriminatory cases because “the Court of Appeals found that in this case respondent had alleged an extra factor as well – a factor that the Court of Appeals called ‘vindictive action,’ ‘illegitimate animus,’ or ‘ill will.’”[34]

Although Judge Easterbrook is correct that personal animus is not a required element in class-of-one claims, showing animus in order to prove lack of a rational basis is akin to proving severe under-inclusiveness in ordinary equal protection claims under the rational basis test. As the Court stated in Nordlinger v. Hahn,

A classification rationally furthers a state interest when there is some fit between the disparate treatment and the legislative purpose . . . Nonetheless, in some cases the under-inclusiveness or the over-inclusiveness of a classification will be so severe that it cannot be said that the legislative distinction ‘rationally furthers’ the posited state interest.[35]

If, as Judge Easterbrook states, one of the reasons for the police decision in Del Marcelle was a lack of resources, enforcing a rule against only the plaintiff in order to preserve those resources while not enforcing that rule against all others similarly situated can be used rebut the rational basis presumption. This would be the case if the plaintiff can show improper motive or animus in the decision by the police officer. Thus, the police officers would be enforcing the legitimate state interest in an under-inclusive way that does not meet the rational basis standard.

Conclusion

The standard articulated by Judge Wood seems to be in line with how other equal protection cases are decided under the rational basis test. As she argued, this would not put too much of a burden on the plaintiff in order to state a claim of discrimination during the pleading stage because it is difficult to truly get into the state of mind of the actor.[36] When a plaintiff cannot claim a lack of rational basis alone based off of the defendant’s action, “more will be required to cross the line between possibility and plausibility of intentional, irrational behavior. Often something like animus, or the lack of justification based on public duties for singling out the plaintiff (as Judge Posner proposes), or an impermissible personal motivation, will serve that purpose.”[37] This would help the plaintiff pass the pleading stage, especially in cases where a system of randomness is seen as a rational enforcement mechanism, like when a police officer decides to pull over one speeding car as opposed to another. However, when the plaintiff can show that the police officer pulled him over due to personal animus, this can be analogized to a government action of enforcing a rational yet random discretionary policy in an under-inclusive way that would ultimately fail the

[1] U.S. Const. amend. XIV.

[2] Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995).

[3] Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000).

[4] Geinosky v. City of Chi., 675 F.3d 743, 747 (7th Cir. 2012).

[5] Del Marcelle v. Brown Cnty. Corp., 680 F.3d 887, 895 (7th Cir. 2012) (citing Engquist v. Oregon Dep’t of Agriculture, 553 U.S. 591, 601 (2008)).

[6] Del Marcelle v. Brown Cnty. Corp., 680 F.3d at 890-91.

[7] 680 F.3d 887 (7th Cir. 2012).

[8] 725 F.3d 681, 685 (7th Cir. 2013).

[9] See Del Marcelle, 680 F.3d at 889 (Posner, J.) (plurality opinion) (writing for four members of the court).

[10] See id. at 913–14 (Wood, J., dissenting) (writing for five members of the court).

[11] See id. at 900 (Easterbrook, C.J., concurring in the judgment).

[12] Id. at 906.

[13] Id. at 907.

[14] Id. at 889.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id. at 893.

[20] Id. at 913.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 915. (quoting Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1218 (10th Cir. 2011)).

[25] Id. at 918.

[26] Id. at 900.

[27] Id.

[28] Id.

[29] Village of Willowbrook v. Olech, 528 U.S. 562, 564 (quoting Sioux City Bridge Co. v. Dakota County, 260 U.S. 441, 445 (1923)).

[30] Id. at 565.

[31] Del Marcelle, 680 F.3d at 918.

[32] Olech, 528 U.S. at 565.

[33] Id. (Breyer, J. concurring)

[34] Id. at 565-66. (quoting Olech v. Vill. of Willowbrook, 160 F.3d 386, 387 (7th Cir. 1998)).

[35] Nordlinger v. Hahn, 505 U.S. 1, 34-35 (1992).

[36] Del Marcelle, 680 F.3d at 918.

[37] Id. at 914.


COMMENT: It’s High Time for the Defense Bar to Bring Race-Based Equal Protection Challenges to Federal Cannabis Scheduling

By: Reid Murdoch
Associate Editor, Vol. 20, Michigan Journal of Race & Law

Editor’s Note: This Comment was originally published on Feb. 15, 2015.

Last fall, U.S. District Court Judge Kimberly J. Mueller held a rarely granted evidentiary hearing on the constitutionality of designating cannabis as a Schedule I Controlled Substance.[1] Defendant Brian Pickard, through his attorneys, has moved to dismiss charges of cannabis cultivation in the Eastern District of California.[2] Invoking the doctrine of equal protection, he argues that the current classification scheme, placing cannabis among the most dangerous substances, is so contrary to prevailing scientific understanding as to lack rational basis.[3]

In the past, federal cannabis defendants have been unsuccessful in challenging the Controlled Substances Act (CSA)[4] itself. Mr. Pickard’s case is thus notable as an example of judicial willingness to revisit the question, given the rapidly changing scientific and political landscape surrounding the issue.[5] In this case, the scientific evidence introduced is probably reason enough to invalidate the scheduling scheme, but the applicability of equal protection to this issue is not limited to a rational basis inquiry. Thanks in part to new, comprehensive documentation of nationwide racial disparity in cannabis enforcement,[6] the statute should be subjected to strict scrutiny. This Comment contends that taken together, the impact, application, and legislative history of federal cannabis prohibition provide compelling evidence of a policy that unconstitutionally discriminates against a protected class.

Using Science to Challenge the Rational Basis of Cannabis Scheduling

Schedule I of the CSA, where cannabis is currently listed, is the strictest of five possible regulatory classifications for illicit substances.[7] Schedule I classification places tight limits on the ability of doctors to prescribe a drug, and of scientists to research its medical applications.[8] Not surprisingly, efforts by patients and advocates to remove cannabis from Schedule I are therefore nothing new.

Past unsuccessful challenges by advocates have included petitions to the DEA Administrator,[9] delegated authority by the DOJ to reschedule substances unilaterally.[10] The criminal litigation currently unfolding in Sacramento goes beyond such administrative petitions for rescheduling, in that the Defendant is requesting the statutory provision itself be held illegal.[11] If Judge Mueller finds in favor of the Defendant, as cautiously deemed possible by at least one law professor,[12] the case would likely be appealed to the Ninth Circuit.

As laid out in the original Defendant’s Motion to Dismiss, the scientific evidence available today overwhelmingly cuts against scheduling cannabis at all, let alone its inclusion in Schedule I. The CSA, by its text, requires the following findings before a substance may be placed in the first schedule: “(A) . . . [H]igh potential for abuse. (B) . . . [N]o currently accepted medical use . . . in the United States. (C) . . . [L]ack of accepted safety for use of the drug . . . under medical supervision.”[13] At the time of the Defendant’s filing, twenty-one states and the District of Columbia permitted the distribution of cannabis for medical purposes.[14] Two additional states have since joined this list.[15] Exiting Attorney General Eric Holder himself last year suggested that the scheduling science ought to be revisited.[16]

At the evidentiary hearing in October, the defense put forth a detailed scientific and comparative case for why the current federal cannabis classification is arbitrary and capricious, calling to the stand nationally acclaimed expert Dr. Carl Hart.[17] On conclusion of the hearing, Judge Mueller ordered further briefing, suggesting a continued openness to serious consideration of the Defendant’s challenge.[18]

Further changes in the political and scientific landscape since that time now make it harder than ever for the government to show why cannabis qualifies for Schedule I. In December, Congress protected state medical cannabis programs by eliminating funding for any federal enforcement against those in compliance with state law.[19] This is consistent with an official shift in DOJ policy the year prior (the “Cole memo”).[20] Around the same time, the American Herbal Pharmacopeia added cannabis to its index of known botanical medicines,[21] joining countless institutions and medical experts who have recognized the plant’s efficacy.[22] Most recently, incoming Surgeon General of the United States Vivek Murthy made statements acknowledging medicinal value in cannabis.[23]

After a brief continuance, final arguments in the Pickard case took place on February 11th].[24]

Elevating the Standard of Review with a Race-Based Equal Protection Claim

Defendants have long argued that the placement of cannabis in Schedule I lacks rational basis.[25] Judge Mueller need not rely, however, on such a deferential standard in order to invalidate 21 U.S.C. § 812(c)(10). The extreme racial element to cannabis prohibition in the United States mandates the application of strict scrutiny to the present classification scheme.[26] Going forward, cannabis defendants should, as a matter of course, include in their pleadings a protected class challenge to prohibition grounded in the doctrine of equal protection.[27]

Equal protection claims alleging racial discrimination need not show an actual racial preference on the face of the law; discriminatory administration is sufficient.[28] Likewise, a law may violate equal protection if its legislative purpose was so rooted in racial bias as to render it inherently discriminatory.[29] Looking at the history and administration of cannabis prohibition in the United States, both indicia of unequal protection are found. As noted in the Pickard pleadings, historical arguments for proscribing cannabis repeatedly and explicitly invoked racial animus.[30] Furthermore, the administration of cannabis prohibition today is so shockingly disproportionate along racial lines that the law cannot be understood as effectively race-neutral.[31]

A statute’s racially disparate impact alone does not violate equal protection.[32] Rather, common sense suggests that most laws will inevitably affect different demographics at different rates. In the case of cannabis prohibition, however, there is now complete empirical data on the scale of disparate enforcement nationwide: the ACLU report lays bare how racial disparity is found in practically every single county in the nation,[33] not just areas considered urban or racialized. This uniquely exhaustive data set becomes even more strongly indicative of racial discrimination in the law once paired with the finding that rates of cannabis violations among Black and white Americans are effectively equal.[34]

In sum, federal cannabis prohibition should be invalidated for violating the constitutional principle of equal protection under the law. This conclusion can be reached independently on either classificatory or racial grounds. By the conditions of the Controlled Substances Act itself, the provision placing cannabis in Schedule I is arbitrary and devoid of scientific basis. Furthermore, and perhaps more importantly for the purpose of judicial review, prohibition today is inherently discriminatory, as evidenced by its strongly racialized impact, administration, and history throughout the United States. Judge Mueller need not rely on the newest science: the law’s racially discriminatory nature is now so apparent that strict scrutiny must be applied.

Citations

[1] E.g., John Balazs, EDCA Schedule I Marijuana Evidentiary Hearing Update, Eastern District of California Blog (Oct. 27, 2014), http://edca.typepad.com/eastern_district_of_calif/2014/10/edca-schedule-i-marijuana-evidentiary-hearing-update.html.

[2] Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment. Available at http://edca.typepad.com/files/defendants-motion-to-dismiss-and-memo-of-law.pdf.

[3] Id. at 2-3.

[4] Classification of cannabis can be found at 21 U.S.C. § 812(c)(10) (2006) (“Marihuana.”).

[5] See, e.g., Beau Kilmer, Unprecedented Changes in Marijuana Policy: Year in Review 2014, Encyclopaedia Britannica (Jan. 20, 2015), http://www.britannica.com/EBchecked/topic/2014336/Unprecedented-Changes-in-Marijuana-Policy-Year-In-Review-2014.

[6] “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013), https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf.

[7] See 21 U.S.C. § 812(b)(1)-(5) (2006).

[8] E.g., Ed Silverman, Pediatricians Urge DEA to Reclassify Medical Marijuana to Boost Resarch, Pharmalot, Wall St. J. (Jan. 26, 2015), http://blogs.wsj.com/pharmalot/2015/01/26/pediatricians-urge-dea-to-reclassify-medical-marijuana-to-boost-research/; The Times Editorial Board, Is marijuana really as dangerous as heroin and LSD? Finally, a welcome legal review, LA Times (Jan. 20, 2015), http://www.latimes.com/opinion/editorials/la-ed-marijuana-schedule-1-20150121-story.html.

[9] See, e.g., Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013).

[10] See Annaliese Smith, Comment, Marijuana as a Schedule I Substance: Political Ploy or Accepted Science?, 40 Santa Clara L. Rev. 1137 (2000) at 1149. This lengthier piece collects the scientific and political history leading up to the current century’s rescheduling debate.

[11] E.g., Jacob Sullum, Criminal Case Reopens the Issue of Marijuana’s Legal Status, Hit & Run Blog, Reason (Oct. 31, 2014), http://reason.com/blog/2014/10/31/criminal-case-reopens-the-issue-of-marij#comment.

[12] Id. But see Alex Kreit, Federal court to hold evidentiary hearing on the constitutionality of marijuana as a Schedule I substance, Marijuana Law, Policy & Reform, Law Professor Blogs Network (Mar. 21, 2014),http://lawprofessors.typepad.com/marijuana_law/2014/03/federal-court-to-hold-evidentiary-hearing-on-the-constitutionality-of-marijuana-as-a-schedule-i-subs.html.

[13] 21 U.S.C. § 812(b)(1) (2006); see also Smith at 1147.

[14] Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment at 25.

[15] See Medical Marijuana Overview, Marijuana Policy Project, http://www.mpp.org/reports/medical-marijuana-overview.html.

[16] Paul Armentano, Federal Judge to Hold Hearing on Whether Cannabis Should be Removed as a Schedule I Drug, TheJointBlog (Oct. 21, 2014), http://thejointblog.com/federal-judge-hold-hearing-whether-cannabis-removed-schedule-1-drug/.

[17] See, e.g., Jeremy Daw, Federal Prosecutors Appear to Concede Cannabis’ Medical Benefits, The Leaf Online (Oct. 28, 2014), http://theleafonline.com/c/politics/2014/10/federal-prosecutors-appear-concede-cannabis-medical-benefits/. Dr. Hart is an Associate Professor of both Psychiatry and Psychology at Columbia University, and the first tenured African American science professor at that institution. E.g., Tavis Smiley Interview, Neuroscientist Dr. Carl Hart, PBS Video (July 12, 2013), http://video.pbs.org/video/2365045350/.

[18] John Balazs, Further Briefing Ordered in Schweder Marijuana Case, Eastern District of California Blog (Nov. 10, 2014), http://edca.typepad.com/eastern_district_of_calif/2014/11/further-briefing-ordered-in-schweder-marijuana-case.html.

[19] Consolidated and Further Continuing Appropriations Act, 2015, Pub. L. No. 113-235, § 538 (2014).

[20] Memorandum for All United States Attorneys, From James M. Cole, Deputy Attorney General, Guidance Regarding Marijuana Enforcement (Aug. 29, 2013), Office of the Deputy Attorney General, U.S. Department of Justice, http://www.justice.gov/iso/opa/resources/3052013829132756857467.pdf, discussed in Reid Murdoch, Regulated Cannabis Markets Open, Institutional Barriers Crumble, JURIST – Dateline (Feb. 2, 2014), http://jurist.org/dateline/2014/02/reid-murdoch-marijuana-legalization.php.

[21] David Downs, American Herbal Pharmacopoeia: ‘Welcome Back, Marijuana!’, SmellTheTruth, SFGate (Dec. 11, 2013), http://blog.sfgate.com/smellthetruth/2013/12/11/american-herbal-pharmacopoeia-welcome-back-marijuana/.

[22] E.g., Sanjay Gupta, Gupta: ‘I am doubling down’ on medical marijuana, CNN (Mar. 6, 2014), http://www.cnn.com/2014/03/05/health/gupta-medical-marijuana/ (Dr. Sanjay Gupta, CNN Chief Medical Correspondent).

[23] New Surgeon General Dr. Vivek Murthy: Measles vaccine is safe and effective, “CBS This Morning” (Feb. 4, 2015, 8:02am), CBS News, http://www.cbsnews.com/videos/new-surgeon-general-dr-vivek-murthy-measles-vaccine-is-safe-and-effective/ (“We have some preliminary data showing that for certain medical conditions and symptoms that marijuana can be helpful.”).

[24] John Balazs, Schweder Marijuana Hearing Continued to February 11, 2:30 p.m., Eastern District of California Blog (Jan. 23, 2015), http://edca.typepad.com/eastern_district_of_calif/2015/01/schweder-marijuana-hearing-continued-to-february-11-230-pm.html.

[25] E.g., Smith at 1149-50 (describing United States v. LaFroscia, 354 F. Supp. 1338 (S.D.N.Y. 1973), the first such constitutional challenge in a criminal trial).

[26] See, e.g., Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 228-29 (1995) (holding that strict scrutiny applies to all racial classifications, whether intentions are benign or malicious).

[27] To their credit, Mr. Pickard’s attorneys do raise this additional, race-based equal protection challenge in a footnote, though it does not make up a substantial part of their argument. See Defendant Brian Pickard’s Notice of Motion and Motion to Dismiss Indictment at 10-11, n.16.

[28] Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886).

[29] Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977) (“When there is a proof that a discriminatory purpose has been a motivating factor . . . judicial deference is no longer justified.”)

[30] See supra note 25.

[31] For example, nationally, Black Americans are 3.73 times more likely than whites to be arrested for marijuana possession. “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013) at 4, https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf.

[32] E.g., Washington v. Davis, 426 U.S. 229 (1976).

[33] Id. (“[I]n over 96% of counties with more than 30,000 people in which at least 2% of the residents are Black, Blacks are arrested at higher rates than whites for marijuana possession.”)

[34] “The War on Marijuana in Black and White,” American Civil Liberties Union Foundation (June 2013) at 21-22, https://www.aclu.org/files/assets/1114413-mj-report-rfs-rel1.pdf (“Finding #4: Blacks and Whites Use Marijuana at Similar Rates”).


Comment: How The Diversity Rationale For Affirmative Action May One Day Limit The First Amendment Rights of Universities

Pete Osornio
Associate Editor,  Michigan Journal of Race & Law Volume 19

Editor’s note: This Comment was originally published on May 27, 2014.

I. Diversity (Re)affirmed

Grutter v. Bollinger definitively authorized the use of affirmative action policies in higher education,[1] resolving the circuit split[2] that followed the Supreme Court’s fractured opinion in Regents of University of California v. Bakke.[3] In Grutter, the Supreme Court endorsed Justice Powell’s view that diversity is a compelling state interest justifying the consideration of race and ethnicity in college admissions.[4] The Court approved the University of Michigan Law School’s affirmative action policy on the grounds that admitting individuals with diverse backgrounds “contribute[s] to the learning of those around them.”[5] Indeed, the Court lauded the Law School for aspiring to “achieve that diversity which has the potential to enrich everyone’s education and thus make a law school class stronger than the sum of its parts.”[6]

While Grutter was in some respects a victory for proponents of affirmative action policies, the Court’s agreement with Justice Powell that diversity is the lone constitutionally permissible basis for such policies engendered an inconsistency. Citing Bakke, the Court said the right of the University of Michigan to seek a diverse student body is grounded in its First Amendment right to define its educational mission.[7] However, the Court did not address why, in light of the Fourteenth Amendment’s guarantee of equal protection of the laws,[8] the First Amendment nonetheless permits admissions offices to afford preferences to some racial and ethnic minorities but not others.

II. Education is the Very Foundation of Good Citizenship[9]

The importance of education in an individual’s life was the rationale underlying Grutter.[10] In its decisions on race and education, the Court frequently notes the role that a diverse educational environment plays in a person’s maturation and consequently on the development of a just society.[11] The Court should not be faulted for recognizing diversity as a compelling state interest, as research has substantiated the Court’s conclusion.[12] But if attainment of a critical mass of minority students is significant because it enriches every student’s education, then Grutter failed to adequately scrutinize the Law School’s policy. While Grutter sanctioned the Law School’s exclusion of individuals of Jewish and Asian American descent from receiving affirmative action preferences on the grounds that individuals from those groups were already enrolling in significant numbers,[13] it never addressed why the admissions office could exclude other minorities who were not enrolling at the school in critical mass quantities from receiving preferences. Instead, the Court implicitly endorsed the specific racial and ethnic categories afforded preference by the Law School without questioning whether providing preferences solely to those groups would actually allow the School to realize the educational benefits of diversity.[14]

As a result, under Grutter, a university can grant preference to a Hispanic applicant who is wholly integrated into American society over an Arabic-speaking applicant from Saudi Arabia.[15] Yet there is ample evidence that Arab Americans experience significant societal discrimination—a valid basis for granting affirmative action preferences under Grutter[16]—and that therefore the non-Arab American students of many universities would benefit from having a critical mass of Arab American classmates.[17] Likewise, under Grutter, a university can grant preference to white descendants of Spanish conquistadors while denying those preferences to children of Hmong parents.[18] In fact, Hmong applicants may find themselves at a disadvantage because Asian Americans are considered to be overrepresented at many institutions of higher learning,[19] even though Hmong students specifically are not well-represented.[20]

III. The First Amendment Rights of Admissions Offices Will Likely Come Up For Review at Some Point

It is unclear whether satisfactory reasons exist for permitting the particular preferences tacitly approved by Grutter. In that sense, Fisher v. University of Texas at Austin[21] was a missed opportunity. The University of Texas was granting preference to Hispanic applicants—even though Hispanics were enrolling at the school in significant numbers—while simultaneously denying preference to Asian Americans, a group whose enrollment lagged behind that of Hispanics.[22] The Court could have used the case to scrutinize affirmative action policies crafted under the pretense of improving student body diversity. Although the Court purported to apply strict scrutiny to the University of Texas’s policy,[23] it never forced the admissions office to offer a coherent explanation of why fewer Asian Americans than Hispanics were needed to attain the educational benefits of diversity.[24]

Given our increasingly multicultural society,[25] this issue is gaining importance because the collegiate admissions process is one of the few settings in which states may allocate benefits and burdens on the basis of race and ethnicity. Fisher reaffirmed admissions officers’ prerogative in this regard.[26] Nevertheless, given that diversity is the only constitutionally permissible justification for affirmative action in higher education, it is likely that universities will at some point be required to explain to the Supreme Court why the Equal Protection Clause permits affording preferences to some racial and ethnic minorities but not others.

Many assume that universities’ actual motive for adopting affirmative action policies is to rectify the lasting socioeconomic impact of slavery and discrimination,[27] but that basis for affirmative action was constitutionally foreclosed by Justice Powell’s opinion in Bakke,[28] and to some extent by the Court’s opinions in City of Richmond v. J.A. Croson Co.[29] and Adarand Constructors, Inc. v. Pena.[30] Thus, in Grutter the University of Michigan Law School likely put forth the diversity argument hoping that the Supreme Court would unequivocally adopt Justice Powell’s view. Although the Law School was ultimately successful, the result created tension in cases such as Fisher, where the University of Texas was already attracting a considerable number of Hispanic students. In those instances, the diversity rationale is questionable at best. Accordingly, it is likely that universities will at some point be forced to defend their freedom to define the details of their affirmative action policies. If no constitutionally permissible justification exists for granting preferences to some minority groups but not others, the Supreme Court may limit the First Amendment rights of universities.

[1] 539 U.S. 306, 343 (2003) (“In summary, the Equal Protection Clause does not prohibit the Law School’s narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body.”).

[2] Compare Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that diversity is not a compelling state interest), with Smith v. Univ. of Wash. Law Sch., 233 F.3d 1188 (9th Cir. 2000) (holding that it is).

[3] 438 U.S. 265 (1978).

[4] 539 U.S. at 325 (“[T]oday we endorse Justice Powell’s view that student body diversity is a compelling state interest that can justify the use of race in university admissions.”).

[5] Id. at 315.

[6] Id.

[7] Id. at 324 (“Justice Powell grounded his analysis in the academic freedom that ‘long has been viewed as a special concern of the First Amendment.’”).

[8] U.S. Const. amend XIX, § 1 (“[N]or shall any State deprive any person of … the equal protection of the laws.”).

[9] Brown v. Bd. of Ed. of Topeka, 347 U.S. 483, 493 (1954).

[10] To buttress its decision, the Court looked to the business world, which asserted that the skills needed in the “increasingly global marketplace” could only be developed through exposure to widely diverse people, cultures, ideas, and viewpoints. Grutter, 539 U.S. at 330. The Court also pointed to the United States military, which contended in an amicus brief that a “highly qualified, racially diverse officer corps” was “essential to the military’s ability to fulfill its principle mission to provide national security.” Id. at 331.

[11] See Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 782  (2007) (Kennedy, J., concurring in part and concurring in the judgment) (“The Nation’s schools strive to teach that our strength comes from people of different races, creeds, and cultures uniting in commitment to the freedom of all.”); Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 313 (1978) (“[I]t is not too much to say that the ‘nation’s future depends upon leaders trained through wide exposure’ to the ideas and mores of students as diverse as this Nation of many peoples.” (citing Keyishian v. Bd. of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967))); Brown, 347 U.S. at 493 (1954) (“[Education] is the very foundation of good citizenship. Today it is a principal instrument in awakening the child to cultural values, in preparing him for later professional training, and in helping him to adjust normally to his environment. In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education.”).

[12] See, e.g., Patricia Gurin et al., The Benefits of Diversity in Education for Democratic Citizenship, 60 J. of Soc. Issues 17 (2004), available at http://onlinelibrary.wiley.com/doi/10.1111/j.0022-4537.2004.00097.x/full; Patricia Gurin, Expert Report of Patricia Gurin, Gratz v. Bollinger, 122 F. Supp. 2d 811 (E.D. Mich. 2000) (No. 97-75321) and Grutter v. Bolinger, 16 F. Supp. 2d 797 (E.D. Mich. 1998) (No. 97-75928), reprinted in 5 Mich. J. Race & L. 363 (1999), available at http://www.vpcomm.umich.edu/admissions/legal/expert/gurintoc.html.

[13] Grutter, 539 U.S. at 319 (“[The Law School] acknowledged that other groups, such as Asians and Jews, have experienced discrimination, but explained they were not mentioned in the policy because individuals who are members of those groups were already being admitted to the Law School in significant numbers.”).

[14] See id. at 308 (“The Court defers to the Law School’s educational judgment that diversity is essential to its educational mission.”).

[15] Brief for Petitioner at 24, Grutter, 539 U.S. 306 (No. 02-241), 2003 WL 164185 at *43 (“The Law School’s daily tracking of the race and ethnicity of its applicants entirely omits many racial and ethnic groups, including, for example, Arab Americans, who receive no preferential treatment.”).

[16] See Grutter, 539 U.S. at 316 (“The policy does, however, reaffirm the Law School’s longstanding commitment to ‘one particular type of diversity,’ that is, ‘racial and ethnic diversity with special reference to the inclusion of students from groups which have been historically discriminated against . . . .’”).

[17] See, e.g., Christine Tamer, Arab Americans, Affirmative Action, and a Quest for Racial Identity, 16 Tex. J. C.L. & C.R. 101, 118 (2010).

[18] Brief for Petitioner, supra note 15, at 24 (“Asian Americans are treated as [an] undifferentiated mass[], receiving no preference for race or ethnicity, even though one could easily identify dozens of separate racial or ethnic groups contained in th[at] . . . categor[y].”).

[19] See, e.g., Sharon S. Lee, The De-Minoritization of Asian Americans: A Historical Examination of the Representations of Asian Americans in Affirmative Action Admissions Policies at the University of California, 15 Asian Am. L.J. 129 (2008).

[20] Rong Xiaoqing, Divided by Affirmative Action? A Diversified Asian Community Facing New Challenge, Voices of NY (Apr. 8, 2013, 12:37 PM), http://www.voicesofny.org/2013/04/divided-by-affirmative-action-a-diversified-asian-community-facing-new-challenge/ (“Unlike the Chinese, the Korean or the Indians, who are already regulars in the Ivy Leagues, smaller groups such as the . . . Hmongs are still far underrepresented in colleges. They could benefit when the racial background is broken down to subgroups on the application forms.”).

[21] 133 S. Ct. 2411 (2013).

[22] Brief for Petitioner at 20, Fisher v. Univ. of Tex. at Austin, 133 S. Ct. 2411 (2013) (No. 11–345) 2012 WL 1882759 at *46 (“There are slightly more Hispanic students than Asian-American students enrolled at UT . . . yet UT discriminates between the two by using race in admissions decisions to benefit the former but not the latter . . . .”).

[23] Fisher,133 S. Ct. at 2420.

[24] Fisher argued that UT’s differing treatment of Asian Americans and other minorities amounted to racial balancing. Brief for Petitioner, supra note 22, at 26-28. The Supreme Court has repeatedly held that racial balancing is “patently unconstitutional.” See, e.g., Grutter v. Bollinger, 539 U.S. 306, 330 (2003).

[25] In the next fifty years, the United States is projected to become a plurality nation, with no single racial or ethnic group in the majority. Press Release, United States Census Bureau, U.S. Census Bureau Projections Show A Slower Growing, Older, More Diverse Nation a Half Century from Now (Dec. 2012, 2012), available at http://www.census.gov/newsroom/releases/archives/population/cb12-243.html. By 2060, Whites are projected to account for 43% of the population; Hispanics are projected to make up 31% of the population; African Americans are projected to amount to 14.7% of the population; and Asians are projected to constitute 8.2% of the population. Id.

[26] Id. at 2415.

[27] See, e.g., Erwin Chemerinsky, Making Sense of the Affirmative Action Debate, 22 Ohio N.U. L. Rev. 1159, 1161 (1996) (“The most frequently identified objective for affirmative action is to remedy past discrimination.”).

[28] Regents of Univ. of Cal. v. Bakke, 438 U.S. 265, 310 (1978) (“[T]he purpose of helping certain groups whom the faculty of the Davis Medical School perceived as victims of ‘societal discrimination’ does not justify a classification that imposes disadvantages upon persons like respondent, who bear no responsibility for whatever harm the beneficiaries of the special admissions program are thought to have suffered.”).

[29] 488 U.S. 469, 505-06 (1989) (“To accept [a] claim that past societal discrimination alone can serve as the basis for rigid racial preferences would be to open the door to competing claims for ‘remedial relief’ for every disadvantaged group. . . . [S]uch a result would be contrary to both the letter and spirit of a constitutional provision whose central command is equality.”).

[30] 515 U.S. 200, 227 (1995) (“[T]he Fifth and Fourteenth Amendments to the Constitution protect persons, not groups. It follows from that principle that all governmental action based on race . . . should be subjected to detailed judicial inquiry to ensure that the personal right to equal protection of the laws has not been infringed.”).


Comment: The Appearance of Impartiality in New York City’s Stop-and-Frisk Litigation

Andrew Goddeeris
Associate Editor,  Michigan Journal of Race & Law Volume 19

Editor’s Note: This Comment was originally published on 11/12/2013.

 This past August, U.S. District Court Judge Shira Scheindlin issued a ruling in Floyd v. City of New York that challenged the New York City Police Department’s (“NYPD”) controversial use of stop-and-frisk practices in the last decade.[1] From January 2004 to June 2012, the NYPD made 4.4 million stops on New York City streets, and over 80% of these stops were of Blacks or Hispanics.[2] The Plaintiffs in the case argued that they were stopped without legal basis in violation of the Fourth Amendment and that they were targeted for stops because of their race in violation of the Fourteenth Amendment.[3] The case was about whether the city had a policy or custom of violating the Constitution by making unlawful stops and conducting unlawful frisks.[4]

Judge Scheindlin found that indeed the NYPD had engaged in racial profiling in their application of stop-and-frisk tactics that violated the Fourth and Fourteenth Amendments.[5] She found that the NYPD was targeting Black and Hispanic residents for stops based on “a lesser degree of objectively founded suspicion than whites.”[6] Judge Scheindlin ordered remedies that included a revision of department policies and training procedures with community input, changing the written documentation police must produce after stops, and establishing a pilot program in which officers would wear cameras on their bodies while on the job.[7] She also ordered that these revisions and policy changes be overseen by an independent monitor.[8]

This October, however, the United States Court of Appeals for the Second Circuit issued an order staying Judge Scheindlin’s ordered remedies until that court hears the City’s appeal in spring 2014.[9] Controversially, the Second Circuit also removed Judge Scheindlin from the case, saying that she acted in a manner that caused the court to question her impartiality.[10] The Second Circuit said that Judge Scheindlin compromised the “appearance of partiality” when she encouraged plaintiffs to file a racial profiling case that she could accept as a related case under S.D.N.Y. Local Rule 13(a) in a 2007 proceeding involving the parties in Daniels v. City of New York, a landmark precursor to Floyd.[11] S.D.N.Y.’s local rules call for random case assignments, but also allow judges to accept new cases related to an earlier-filed case already on their docket.[12] Because of these rules, Judge Scheindlin, who was randomly assigned Daniels in 1999, has presided over an uninterrupted streak of stop-and-frisk cases in S.D.N.Y.[13] The Second Circuit also rebuked Judge Scheindlin for public comments she made about her role in the litigation.[14]

Curiously, it appears that the Second Circuit may have relied in part on an article authored by Professor Katherine A. Macfarlane that is forthcoming in the Michigan Journal of Race & Law Volume 19.2. Macfarlane’s article, The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule has Shaped the Evolution of Stop-and-Frisk Law, details how S.D.N.Y.’s local rules allow an interested judge to inject him or herself into litigation.[15] Macfarlane cautions that the manner in which Judge Scheindlin was able to reserve authority over “an entire category of Fourth Amendment jurisprudence” presents problems of impartiality and gives too much authority to a single judge to shape significant Constitutional jurisprudence.[16] She goes on to argue that Judge Scheindlin’s broad view of a plaintiff’s right to enforce the Fourth Amendment could leave her decisions open to attack on appeal, and could ultimately narrow the rights at issue.[17] In her article, Macfarlane cites to an article by Jeffrey Toobin in the New Yorker, an article by Joe Goldstein in the New York Times, and an article by Mark Hamblett in the New York Law Journal, all three of which are cited by the Second Circuit in footnotes.[18] Furthermore, the idea of the “appearance of impartiality” figures prominently in both the article and in the Second Circuit’s order.

The decision to remove Judge Scheindlin from the case has drawn substantial criticism,[19] and Professor Macfarlane herself said that the Second Circuit’s design to reassign the stop-and-frisk litigation “makes no sense to me, as Judge Scheindlin merely followed the local rules.”[20] Whether those rules are problematic, however, is the topic of her forthcoming article. In addition to the importance of the City’s impending appeal of the finding of Constitutional violations, the issue of the NYPD’s use of stop-and-frisk will continue to develop in the wake of the election of Bill de Blasio, who has pledged to reform NYPD practices, to the mayor’s office.[21] For her part, Judge Scheindlin is seeking a hearing before the Second Circuit panel that removed her from the case.[22] Look for Professor Katherine Macfarlane’s article in Volume 19.2 of the Michigan Journal of Race & Law.


[1] Opinion and Order at 1, Floyd v. City of New York, No. 1:08-CV-01034-SAS-HBP (S.D.N.Y. Aug. 12, 2013).

[2] Id.

[3] Id. at 2.

[4] Id. at 2–3.

[5] Id. at 13.

[6] Joseph Goldstein, Judge Rejects New York’s Stop-and-Frisk Policy, N.Y. Times (Aug. 12, 2013), http://www.nytimes.com/2013/08/13/nyregion/stop-and-frisk-practice-violated-rights-judge-rules.html?_r=0.

[7] Kathleen Horan, Judge Rules NYPD Stop-and-Frisk Unconstitutional, WNYC (Aug. 12, 2013),  http://www.wnyc.org/story/311311-stop-and-frisk-decision-comes-down/.

[8] Id.

[9] Order, Floyd v. City of New York, No. 13-3088 (2d Cir. Oct. 31, 2013) (staying ruling of District Court and remanding case for judicial reassignment).

[10] Id.

[11] Id.

[12] Katherine A. Macfarlane, The Danger of Nonrandom Case Assignment: How the Southern District of New York’s “Related Cases” Rule Has Shaped the Evolution of Stop-and-Frisk Law, 19 Mich. J. Race & L. (forthcoming 2014). A current version of the article is available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2320689.

[13] Id.

[14] Order, Floyd v. City of New York, No. 13-3088 (2d Cir. Oct. 31, 2013) (staying ruling of District Court and remanding case for judicial reassignment).

[15] Macfarlane, supra note 10.

[16] Id.

[17] Id.

[18] Richard G. Kopf, More on “relatedness,” Judge Scheindlin and the Second Circuit, Hercules and the Umpire (Nov. 4, 2013), http://herculesandtheumpire.com/2013/11/04/more-on-relatedness-judge-scheindlin-and-the-second-circuit/.

[19] See Emily Bazelon, Shut Up, Judge! A misguided appeals court trues to silence–and quash–stop-and-frisk Judge Shira Scheindlin, Slate (Nov. 1, 2013), http://www.slate.com/articles/news_and_politics/jurisprudence/2013/11/nypd_and_judge_shira_scheindlin_2nd_circuit_appeals_court_judges_try_to.html; Editorial Board, Judge Scheindlin’s Case, N.Y. Times (Nov. 7, 2013), http://www.nytimes.com/2013/11/08/opinion/judge-scheindlins-case.html?hpw&rref=opinion; Jeffrey Toobin, The Preposterous Removal of Judge Scheindlin, New Yorker (Oct. 31, 2013), http://www.newyorker.com/online/blogs/newsdesk/2013/10/the-preposterous-removal-of-judge-scheindlin.html.

[20] Kopf, supra note 16.

[21] Bill de Blasio, Safe Streets, Safe Neighborhoods Across New York City, BilldeBlasio.com, http://www.billdeblasio.com/issues/crime-fighting-public-safety.

[22] John Riley, Judge Shira Scheindlin seeks hearing on stop-and-frisk ruling, Newsday (Nov. 6, 2013), http://www.newsday.com/news/new-york/judge-shira-scheindlin-seeks-hearing-on-stop-and-frisk-ruling-1.6394634.


Comment: “In America, a Person is Presumed Innocent until Proved Guilty.
Unless, that is, He Plays College Sports.”[1]

Kelly O’Donnell[2]
Executive Production Editor, Michigan Journal of Race & Law Volume 19

Editor’s Note: This Comment was originally published on 10/26/2013.

In college athletics, the violations that affect teams and player eligibility are analogous to criminal violations. Just as in criminal law,[3] the National Collegiate Athletics Association’s (“NCAA”) lack of due process in investigations and high penalties disproportionately affect the groups that are overrepresented in violations––overwhelmingly Black and Hispanic athletes from poor backgrounds.[4] Compounding the discriminatory effect, the NCAA often focuses its investigations on the sports that field the most minority athletes, such as football and basketball.[5] It is nearly impossible to uncover data to prove the discriminatory effect the NCAA’s lack of due process has on minority athletes because even an investigation that does not lead to a sanction can result in an injury.[6] Anecdotal evidence and public perception confirm that minority players outnumber all the rest on the short end of the NCAA’s very large stick.[7]

Despite its close relationship with public universities, the NCAA has yet to be declared a state actor subject to the due process requirements of the Fourteenth Amendment.[8] If a court deems the NCAA so inextricably linked to public universities that it is a state actor, the NCAA would be open to a host of due process claims. At least one pending case, Cohane v. NCAA, makes the argument that the NCAA should be declared a state actor.[9] While Cohane focuses on anti-trust violations, a holding that the NCAA is a state actor may also have implications for Fourteenth Amendment due process claims.

If the NCAA were declared a state actor, it is not immediately clear what due process claims might exist against the NCAA.[10] It is possible that the data will show that the NCAA takes fault into account inconsistently and focuses attention on larger state athletic programs, which tend to attract large numbers of minority athletes, resulting in a system that disproportionately affects racial minorities.[11] The NCAA might simply be prosecuting the easiest cases to find: the powerhouse programs,[12] the attention-grabbing sports, the players that are always in the spotlight, and the players struggling financially for whom an improper benefit is more noticeable.[13] These players are disproportionately Black.

The NCAA has recently garnered unflattering attention as a result of the Johnny Manziel scandal.[14] The NCAA imposed sanctions, although minor, on Johnny Manziel, a sophomore quarterback at Texas A&M from a relatively privileged White family,[15] without any evidence that he had violated a rule in the NCAA Manual. Instead, the NCAA stated that Manziel had violated the “spirit” of the rules due to allegations that he accepted payment for autographs.[16] Although upsetting to some Texas A&M fans, forcing “Johnny Football” to miss the first thirty minutes of the season is far from the most extreme penalty that the NCAA has imposed in other situations where it also lacked evidence of wrongdoing. For example, the University of Connecticut’s Ryan Boatwright, a Black player from modest means,[17] became the subject of vague and conveniently-timed[18] NCAA investigation in the 2011–2012 basketball season, raising alarm about the NCAA’s selective enforcement of already-discriminatory policies.[19] The plight of a wealthy, White quarterback might be exactly what it takes for the public to notice that the NCAA’s disciplinary process has gone mostly unsupervised to the detriment of minority collegiate athletes.[20] It is unfortunate that it has taken this long.

A claim against the NCAA for a violation of due process is unlikely in the foreseeable future, and would take more than anecdotal rants from zealous fans. Perhaps it will take a slap on the privileged White kid’s wrist for the rest of America to notice the plight of the underprivileged minority athletes at the mercy of the NCAA’s every whim.


[1] Joe Nocera, Guilty Until Proved Innocent, N.Y. Times (Jan. 20, 2012), http://www.nytimes.com/2012/01/21/opinion/nocera-guilty-until-proved-innocent.html.

[2] Kelly O’Donnell is in her third year at the University of Michigan Law School, and a rabid fan of UConn and Michigan athletics.

[3] See, e.g.Justice on Trial: Racial Disparities in the American Criminal System, Leadership Conference on Civil Rights, May 2000, available at http://www.civilrights.org/publications/justice-on-trial/.

[4] Joe Nocera, Standing Up to the N.C.A.A., N.Y. Times (Mar. 23, 2012), http://www.nytimes.com/2012/03/24/opinion/nocera-standing-up-to-the-ncaa.html (“[The N.C.A.A.’s] rules enforcing amateurism discriminate against black athletes from disadvantaged backgrounds.”). Also, the Hockey Exception adds to the disparate impact, as few disadvantaged minority students play hockey. Joe Nocera, The Hockey Exemption, N.Y. Times (Feb. 14, 2012), http://www.nytimes.com/2012/02/14/opinion/nocera-the-hockey-exemption.html?ref=joenocera. It seems that such extreme disparate impact in enforcement would satisfy a discriminatory purpose test. See Yick Wo v. Hopkins, 118 U.S. 356 (1886).

[5] The NCAA is not alone: the NBA and NFL have also been accused of targeting minority players with rules limiting above-the-rim play, “palming,” player dress codes, and celebratory fines which apply disproportionately to Black and Hispanic players. See, e.g., D.J. Leonard, The Real Color of Money: Controlling Black Bodies in the NBA, 30 Journal of Sport and Social Issues 158, 158–79 (2006), available at http://jss.sagepub.com/content/30/2/158.abstract.

[6] For example, due to an ongoing investigation, the NCAA forced University of Connecticut basketball player Ryan Boatright to sit out when his team played against Notre Dame in his home state of Indiana, where over 400 family members and friends had gathered to watch him play. Brian Buckley, How the NCAA is Ruining Ryan Boatright, Bleacher Report (Jan. 25, 2012), http://bleacherreport.com/articles/1039517-uconn-basketball-how-the-ncaa-is-ruining-ryan-boatright. The NCAA broke the news to Boatright just hours before the game.

[7] For example, in a collection of the Top 10 Infamous NCAA Sanctions includes Derrick Rose, Reggie Bush, the Fab Five, all of the incidents involving individual players involved only African-American males, except a 1950s-era point shaving scandal. Top 10 Infamous NCAA Sanctions, Real Clear Sports (May 17, 2013), http://www.realclearsports.com/lists/infamous_ncaa_sanctions/intro.html.

[8] Greg Tyler, Business, the Law, and the NCAA, The Sport Digest (Feb. 17, 2012), http://thesportdigest.com/2012/02/business-the-law-and-the-ncaa/ (“In [Tarkanian v. N.C.A.A., 488 U.S. 179 (1988)] the Court held that the NCAA was not sufficiently linked to public schools to be considered a “state player” and therefore was not subject to due process considerations of the Fourteenth Amendment when conducting investigations.”).

[9] A suit brought by ex-coach Tim Cohane of the University of Buffalo threatens to bring the NCAA within the definition of a state actor.  See Nocera, supra note 3. Nocera has raised the issue of whether the NCAA violates anti-trust laws, but this Comment will focus on the possible Fourteenth amendment violations under a discriminatory purpose or disparate impact analysis. Id. As time passes, however, Cohane’s case looks less likely to be the upset victory many had hoped. Phil Fairbacks, Judge Rules Against Former UB Basketball Coach Suing NCAA, The Buffalo News (Aug. 9, 2013), www.buffalonews.com/apps/pbcs.dll/article?AID=/20130809/CITYANDREGION/130809208/1010See also Cohane v. NCAA, 2012 U.S. Dist. LEXIS 41217 (W.D.N.Y. Mar. 26, 2012).

[10] See, e.g., Dan K. Thommasson, NCAA Reform is Long Overdue, The MetroWest Daily (Aug. 21, 2013), http://www.metrowestdailynews.com/opinion/x511615315/Thomasson-NCAA-reform-is-long-overdue. A bill has even been introduced to Congress that would require the NCAA to provide due process. See Jordan Kobtriz, Column: Congress May Be the NCAA’s Best ‘Frenemy,’ The Daily Courier (Aug. 28, 2013), http://www.dcourier.com/main.asp?SectionID=2&SubSectionID=2&ArticleID=122626 (discussing proposed bill which would require the right to a formal administrative hearing and other due process rights). An analysis of the rules governing NCAA athletes could suggest a discriminatory purpose, or at least cast enough suspicious to get some attention. See Joe Nocera, The Stupidest N.C.A.A. Rule, N.Y. Times (Feb. 17, 2012), http://nocera.blogs.nytimes.com/2012/02/17/the-stupidest-n-c-a-a-rule/ (describing sanction for Jim Valvano when he paid for a player’s flight home for a funeral).

[11] Without intent, this cannot rise to the level of an equal protection claim. Washington v. Davis, 429 U.S. 229, 240 (1976). Although the NCAA is subject to Title VII as an employer, it is not clear that this can be extended to apply to athletes, who are not employees of the NCAA. But if efforts to pay college athletes move forward this could change. See, e.g., Andrei Markovits, A Plea for Remunerating Student Athletes in Revenue-Generating College Sports, The Huffington Post (Sept. 20, 2013), www.huffingtonpost.com/andrei-markovits/paying-student-athletes_b_3951427.html.

[12] Although some have argued that the NCAA gives big schools in big conferences a pass on violations, studies show otherwise. See Doug Lederman, Half of Big-Time NCAA Programs Had Major Violations, USA Today (Feb. 7, 2011), http://usatoday30.usatoday.com/sports/college/2011-02-07-ncaa-infractions_N.htm.

[13] For example, when Michigan basketball standout Maurice Taylor was involved in a car accident that injured fellow played, Robert “Tractor” Traylor, the NCAA investigated, demanding the leasing information for Taylor’s SUV. Taylor was an African-American player from inner-city Detroit, and apparently the NCAA didn’t think he could afford the lease on the Ford Explorer he was driving. See University of Michigan Basketball Scandal, Wikipedia, http://en.wikipedia.org/wiki/University_of_Michigan_basketball_scandal (last visited Oct. 17, 2013). That investigation uncovered the Ed Martin scandal involving Chris Webber, which eventually led the University of Michigan to hefty sanctions. See U-M/NCAA Men’s Basketball Investigation Chronology, Office of the Vice President for Communications, available at http://www.vpcomm.umich.edu/pa/key/bball.html (last visited Oct. 17, 2013).

[14] See, e.g., George Schroeder, ‘No Evidence’ Manziel Took Money for Autographs, USA Today (Aug. 28, 2013), http://www.usatoday.com/story/sports/ncaaf/sec/2013/08/28/johnny-manziel-suspended-for-first-half-of-texas-am-opener-vs-rice/2723767/.

[15] The Manziel family is allegedly funded by oil money. See Timothy Burke, The Long Con: How the Manziels Conquered America, DeadSpin.com (Aug. 12, 2013), http://deadspin.com/the-long-con-how-the-manziels-conquered-america-1040593220.

[16] Brett McMurphy, Twitter, (Aug. 29, 2013 4:49 PM EST) https://twitter.com/McMurphyESPN/status/372823225350520832 (“To clarify: Manziel suspension for violating “spirit” of NCAA bylaw 12.5.2.1 & 12.5.2.2. NCAA couldn’t prove he broke any rules source said.”) See, e.gOur View: Inconsistency Rules in NCAA Punishments, Rockford Register Star (Aug. 29, 2013), http://www.rrstar.com/opinion/x574264636/Our-View-Inconsistency-rules-in-NCAA-punishments (“You didn’t do anything wrong, but we’re going to punish you anyway.”).

[17] See, e.g., Tim Fontenault, NCAA Continuing to Make Life Miserable for Boatright and Team, Bleacher Report (Jan. 26, 2012), http://bleacherreport.com/articles/1039771-ncaa-continuing-to-make-life-miserable-for-boatright-uconn (discussing how Boatright’s mother’s struggle to make ends meet at times).

[18] The NCAA’s investigation forced Boatwright to miss playing at the University of Notre Dame in front of his home-town crowd in South Bend, making the announcement only hours before tip-off. See id. (“The young freshman cried in his coach’s arms before a tearful phone call to his mother to break the news.”).

[19] See, e.g., Joe Nocera, Saving Freshman Ryan, N.Y. Times (Jan. 30, 2010), http://www.nytimes.com/2012/01/31/opinion/nocera-saving-freshman-ryan.html (“It is not an accident that most serious N.C.A.A. “scandals” involve athletes and parents who are disadvantaged. It smells of discrimination.”).

[20] For an interesting related discussion, see Vincent Thomas, Why?…Because the White Men Said So, TheShadowLeague.com (Aug. 29, 2013), http://theshadowleague.com/articles/why-because-the-white-men-said-so.